JUDGMENT : Heard Mr. R. Hussain, the learned Counsel appearing for the petitioner. The respondent ONGC is represented by the learned Senior Counsel Mr. G.N. Sahewalla. 2. The present case initially arose out of the contract agreement No.SBS/TPT/PLG/2(1)/2000-2001 dated 7.9.2001 (Annexure-1), whereby the contract for transportation of materials was awarded by the ONGC to the petitioner. After completion of the work, some payment to the contractor was withheld and accordingly the petitioner filed the Money Suit No.8/2006 on 5.9.2006 to recover Rs.60,35,866/- + interest, from the ONGC. 3. After appearing in the Court, the defendant filed an application on 16.12.2008 under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”) to refer to the suit for arbitration as per the Arbitration Clause 5.26.2 in the contract dated 7.9.2001. The defendants’ application was allowed by the learned Civil Judge, Sivasagar on 5.2.2007 (Annexure-4) and the suit was referred for arbitration. 4. A three member arbitration panel was then constituted and the contractor put forward their claim on 7.10.2008 (Annexure-5). In turn, the ONGC in their statement of defence filed on 4.2.2009 (Annexure-6), asked for dismissal of the contractor’s claim and also made a counter-claim for a sum of Rs.2.51 crore + interest. At that stage, the claimant raised a jurisdictional objection under Section 16 of the Arbitration Act against the counter-claim, through their Petition No.27.2.2009 (Annexure-7). But the ONGC in their reply dated 6.4.2009 (Annexure-8) claimed support for the counter-claim, under Clause 5.22 of the contract dated 7.9.2001. 5. The arbitration panel considered the jurisdictional objection of the claimant filed under Section 16 of the Arbitration Act and gave their preliminary decision on 23.6.2010 (Annexure-9). The decision touched on the merit of the counter-claim as the arbitrators held that the claim arising out of 6 contracts are not only time barred but are also dead, since for the contracts in question, the ONGC have settled all the recoveries and released the final payment to the claimant and gave their accord and satisfaction. Thus while partially allowing the jurisdictional objection of the claimant under Section 16 of the Arbitration Act, a decision on merit was also given to reject the counter-claim of the ONGC, through the Arbitrators’ order dated 23.6.2010 (Annexure-9). 6. Thus while partially allowing the jurisdictional objection of the claimant under Section 16 of the Arbitration Act, a decision on merit was also given to reject the counter-claim of the ONGC, through the Arbitrators’ order dated 23.6.2010 (Annexure-9). 6. Aggrieved by the decision given by the arbitration panel, the ONGC filed an Appeal under Section 37(2)(a) of the Arbitration Act and this was registered as the Misc.(Arb.) Appeal No.4/2010 in the file of the learned District Judge, Sivasagar. Finding merit in the ONGC’s appeal, the learned District Judge through the impugned order dated 15.9.2010 allowed the appeal and set aside the order under challenge and directed the arbitration panel to entertain the counter-claim of the ONGC together with the claim of the contractor. 7.1 Assailing the legality of the decision given by the District, Judge, Sivasagar, Mr. R. Hussain, the learned Counsel submits that when the ONGC’s counter-claim was rejected on merit, they could have filed an application under Section 34 of the Arbitration Act and he argues that the Appeal under Section 37(2)(a) was not maintainable because of the specific bar to entertain such appeal, under Sub-Section (2) of Section 37 of the Arbitration Act. 7.2 The learned Counsel further submist that the ONGC never made any counter-claim during the pendency of the Money Suit in the Court of the Addl. District Judge, Sivasagar and therefore they could not have applied for any counter-claim before the arbitral proceeding, when the suit was transferred for adjudication through arbitration. 7.3 Referring to the Clause 5.26.2.1 of the contract agreement dated 7.9.2001, Mr. Hussain submits that arbitration was envisaged only for the contract in question and the counter-claim of the ONGC in respect of the other 6 contracts could not have been adjudicated, in the arbitration proceeding arising out of the contract agreement dated 7.9.2001 (Anexure-1). 8.1 On the other hand, Mr. G.N. Sahewalla, the learned Senior Counsel for the ONGC submits that the petition under Section 37(2)(a) of the Arbitration Act was the right option for the ONGC to challenge the Arbitrators’ order of 23.6.2010 since in substance, the decision was given on the jurisdictional objection raised by the contractor, under Section 16 of the Arbitration Act. 8.2 On the permissibility of making a counter-claim without first raising it in the Civil Court during the pendency of the Money Suit, Mr. 8.2 On the permissibility of making a counter-claim without first raising it in the Civil Court during the pendency of the Money Suit, Mr. Sahewalla relies on State of Goa vs. Praveen Enterprises reported in (2012) 12 SCC 581 to contend that the arbitrators have jurisdiction to entertain any counter-claim, prior to the stage of pleadings before the arbitrator, although it was not raised at any earlier stage. 8.3 On the issue of whether the counter-claim pertaining to six unrelated contracts can be raised and decided in the arbitral proceeding arising out of the contract dated 7.9.2001, the Senior Counsel refers to Clause 5.22 of the same contract agreement to argue that ONGC holds lien on the contractual dues payable under the contract dated 7.9.2001 in respect of the claim arising out of previous contracts and accordingly it is argued that the counter-claim in the present arbitral proceeding arising out of the contract dated 7.9.2001 is entertainable under Clause 5.22 of the contract agreement. 9. Before proceeding further with the discussion, it may be appropriate now to extract Clause 5.22 and Clause 5.26.2.1 which forms part of the contract agreement dated 7.9.2001 – “………………………………… 5.22 LIEN IN RESPECT OF CLAIMS IN OTHER CONTRACTS (SET OF CLAUSE) Any sum of money due and payable to the contractor (including the security deposit returnable to him) under this contract may be withheld or retained by way of lien to the ONGC against any claim of ONGC in respect of payment of sum of money arising out of or under any other contract/agreement made by the contractor with the ONGC. It is also agreed herewith that the sum so withheld or retained under this clause by the ONGC will be kept withheld or retained as such against this agreement or any other contract/agreement till mutually settled or determined if any.” ……………………………………… “5.26.2.1 Except whereas otherwise provided, all matters, questions disputes or differences whatsoever arising between the parties touching the constructions, meaning, operation or effect or the contract or relating to the contract or breach thereof shall be decided by two arbitrators one to be appointed by each party to the dispute and arbitrators before taking upon themselves the burden of reference appoint an Umpire. The appointment of arbitrators and umpire will be made from the panel of arbitrators of Indian Council of Arbitration.” 10. The appointment of arbitrators and umpire will be made from the panel of arbitrators of Indian Council of Arbitration.” 10. In their decision given by the arbitration panel on 23.6.2010, the counter-claim made by the ONGC was described as time barred and dead. But this conclusion was reached without examining the validity of the counter-claim from the perspective of Clause 5.22 whereunder, the ONGC retained lien on contractual payment in respect of other contracts. 11. That apart, the decision of the arbitration panel given on 23.6.2010 was in the context of the jurisdictional objection made by the contractor under Section 16 of the Arbitration Act and this jurisdictional objection was answered partially by the decision rendered on 23.6.2010. 12. In the above circumstances, it can’t be said that the challenge under Section 37(2)(a) of the Arbitration Act was totally barred as the decision of the arbitrators given on 23.6.2010 answered the jurisdiction objection also and this was a mixed issue of law and facts. Therefore on the first contention of the petitioner, I hold that the ONGC’s petition under Section 37(2)(a) of the Arbitration Act was a valid challenge to the decision of the arbitrators. 13. The next aspect to consider is the validity of the direction of the District Judge to the arbitration panel, to decide the counter-claim of the ONGC. It is apparent here that some observation on the merit of the counter-claim was given earlier by the arbitrators but those conclusions didn’t take into account the provision incorporated in the agreement (Clause 5.22) for retention of lien by the ONGC on the contractual dues arising in this contract for wrongful payments made for other contracts under the ONGC. But since a special clause was inserted to protect the principal’s interest, it is necessary now for the arbitral tribunal to consider the impact of Clause 5.22 of the contract dated 7.9.2001 on the claim for contractual claim. Thus the merit of the counter-claim can certainly be decided even in this arbitration proceeding, started under Clause 5.26.2.1. 14. As regard the validity of the counter-claim not made earlier, in my perception, adequate support for the direction given by the District Judge for its decision of 15.9.2010 can be gathered from Praveen Enterprises (supra) where the Apex Court held that the counter-claim can be raised before the Arbitrator even though it was not raised earlier. 15. 14. As regard the validity of the counter-claim not made earlier, in my perception, adequate support for the direction given by the District Judge for its decision of 15.9.2010 can be gathered from Praveen Enterprises (supra) where the Apex Court held that the counter-claim can be raised before the Arbitrator even though it was not raised earlier. 15. In view of the above discussion and reasoning, I find legal merit in the decision given by the learned District Judge, Sivasagar on 15.9.2010 in the Misc.(Arb.) Appeal No.4/2010 and accordingly the same is sustained. Consequently the arbitral panel should now decide both the claims and counter-claims, in light of the observation made in the preceding paragraphs. The parties are given the liberty to produce their additional pleadings and evidence, in support of their respective claims. It is ordered accordingly. 16. The case is disposed of with the above order without any order on cost.